Witness Prep: Figuring Out What To Say

Most of what lawyers do to prepare clients to testify is a waste of time. The most important part of witness prep is figuring out what the witness is going to say in response to difficult questions. That sounds obvious, but far too often attorneys focus instead on tactics for fencing with the opposing party.

Do any of these sound familiar?

"Don't just answer 'yes' or 'no'."

"Make sure to pause before you answer."

"Only answer the question asked."

"Ask for clarification."

"Only testify from personal knowledge."

"It's fine to say you don't remember."

It isn't that any of these pieces of advice are bad exactly. The problem is they are all just giving the witness generic ways to fence with an examiner. That's a mistake.

In the first place, the witness isn't likely to follow them well. It is the rare witness who can learn in prep how to fight off an experienced examiner. What usually happens is the witness: (a) follows your instructions for the first hour, and then ignores them, or (b) follows them badly and ends up looking evasive and combative.More importantly, however, none of this advice is ultimately helping your client answer the specific difficult questions that she is going to face.

"Why did you sign the 10Q with the wrong number?" "Why did you step on the gas when the light was red?" "Why did you send an email saying 'please delete this'?" Whatever the critical, and difficult, questions are for your witness, 90% of your prep time should be spent on them. You aren't trying to mold the person into a perfect witness; you are trying to help them work through what they can and should say.

How do you do that? Well, at some level, that's why you are paid the big bucks. But here's an approach I use when I get ready to prepare a witness—

First, I type out the 5 to 10 most difficult questions I can think of for the witness. I'm not talking about trick questions, but the actual problematic, difficult, I'm-gripping-my-chair-when-they-are-asked questions. If these questions are based on documents, I put those in a binder.

Second, under each question, I write out two or three bullet points of what I think, based on the evidence, are likely to be the witness's best answers. If there are supporting documents, those go in the binder. Until I meet with the witness, I'm not positive these are in fact the answers, but the exercise is important to getting me ready to talk to the witness.

Third, I spend most of my prep time working through those questions with the witness, and getting them to a place where they are giving the best truthful answers they can. Sometimes that lines up with what I anticipated in part two; often it doesn't. Cases are messy.

The key point is this: witness prep is about substance, not form. The goal is to help your client understand how to best confront and answer the hard questions that will inevitably arise. That's not easy. It's not always successful. But it's the only thing you can do in witness prep that matters.